Killing time?

A recent US Supreme Court case restarts the debate about the death penalty in Illinois

Two Kentucky death-row
inmates — one convicted of killing a sheriff and a deputy sheriff,
the other convicted of killing a couple and wounding their 2-year-old son
— waited as nine United States Supreme Court justices filed into the
room and delivered their verdict.

After nearly three months of deliberation, the high
court ruled 7-2 in Baze v. Rees to reject the inmates’ claims that the use of
the three-drug cocktail — sodium thiopental to sedate, pancuronium
bromide to paralyze, and potassium chloride to stop the beating of the
heart — in lethal injections amounts to cruel and unusual punishment.
The landmark decision, handed down April 16, gives
Kentucky and 36 other states, including Illinois, the green light to employ
this method, but public officials say the Prairie State’s
eight-year-old death-penalty moratorium keeps any immediate impact at
arm’s length for now.

Instead, they say, the ruling could inject new vigor
into the debate about the state’s system of capital punishment, its
inherent flaws, and the ongoing work to revamp its policies and procedures.
Larry Golden, emeritus
professor of political and legal studies at the University of Illinois at
Springfield, didn’t pay much attention to the Supreme Court decision
at first, he says, especially because the national controversy surrounding
the three-drug cocktail wasn’t the motive for the Illinois
moratorium.

“The moratorium in Illinois is a different
animal,” Golden says. “It wasn’t based on the mode of
punishment — it was based more on the fact that we were finding more
and more within the state of Illinois that capital punishment had too many
possibilities for error.”

Gov. George Ryan imposed a statewide moratorium on
capital punishment in January 2000 after former death-row inmate Anthony
Porter was found within 48 hours of his scheduled execution to have been
innocent of the crime of which he’d been convicted. Thirteen other
Illinois inmates on death row had also been deemed innocent — one
more than the number executed since the death penalty was reinstated in
1977.

The Illinois Commission on Capital Punishmentwas formed to review problems
in the system, and two years later the group provided 85 recommendations to
the General Assembly. When legislators virtually ignored the proposals,
Ryan issued blanket clemency to all 167 inmates on death row in Illinois. After Gov. Rod Blagojevich took office, in 2003, he
signed legislation enacting several of the commission’s proposals and
created the Capital Punishment Reform Study Committee to review the reforms
annually for the next five years.

Blagojevich has said in the past that he’s not
against capital punishment, but even though 15 inmates have been sentenced
to death since Ryan’s mass pardon he shows no sign of lifting the
moratorium.

Jane Bohman, executive director of the Illinois
Coalition to Abolish the Death Penalty, says this attitude affirms that
Illinois is moving in the right direction.

“When you’re talking about life or death
and you’ve had such deep systemic problems,” Bohman says,
“it’s important to see if the efforts are working or not before
lifting the moratorium and allowing someone to be killed.”

Besides, she adds, any rush to lift the moratorium
would overlook the reality of the situation, because the first death-row
inmate won’t be through the appeals process for at least five more
years.

ADAPTED FROM AN ILLUSTRATION BY PAUL LACHINE

Although the Baze v. Rees decision may
not tangibly affect Illinois, Golden says it will create a political
atmosphere that intensifies public debate about capital punishment. Momentum against the death penalty, fueled partly by
uncertainty over how the Supreme Court would rule in the Kentucky case, was
building. Golden argues that because lethal injection was upheld and
several states have now announced that they’re resuming executions,
renewed national support for capital punishment could put future pressure
on Illinois.

“We’ve gone through these waves and
shifts in public perception with regard to capital punishment,”
Golden says. “I think the concern now is that certainly places like
Virginia, Texas, and Florida that are directly impacted by a legal
standpoint are going to start up capital punishment again. “No one knows where that is going to go here.
It can either elicit greater opposition or saying, ‘It works;
we’re going to do it; that’s it.’ ”

For Bohman, the statistics speak for themselves.

She
says the nature of the legal system is changing — more inmates are
receiving lesser charges or even acquittals in capital trials than death
sentences. According to ICADP, the number of death sentences in
the past five years has ranged from a high of four in 2004 to a low of one
in 2005 — on average, fewer than three a year. In 2007, only three
men were sentenced to death in 64 capital cases resolved statewide.

Charles Hoffman has worked as an attorney with the
Office of the State Appellate Defender since 1986 and agrees that the
legality of the situation has changed drastically since Ryan cleared out
death row. Up until 2003, his office was dealing with 12 to 15 cases a
year, but currently he’s only working with one client.

Hoffman says horrific stories about capital cases
over the past 20 years and the option of life without parole have
influenced many judges and juries who previously thought that the death
penalty was the only way to sufficiently protect Illinois citizens. Plus,
he says, it’s usually now regarded more as retribution for
victims’ families than as a deterrent against future crime.

“Judges and juries are not as enthusiastic
about capital punishment,” Hoffman says. “It’s only 15 to
20 percent of what it used to be.” Hoffman and other public
officials say that this change in public opinion stems from flaws
continuously being identified in Illinois’ system of capital
punishment. He says that, regardless of the religious or ethical beliefs of
employees in his office, almost everyone views the current death penalty as
a waste of time and resources.

“It’s kind of like the proverbial working
in the sausage factory,” Hoffman says. “When you see how the
system works from the inside, whether you think the death penalty is
valuable in theory, you learn in practice that it doesn’t do what it
purports to do.”

Hoffman argues that one of the system’s main
problems is its arbitrary nature. At one time Illinois had six factors,
such as the murder of a peace officer or murder involving torture, that
each of the 102 elected state’s attorneys could use to decide whether
to seek the death penalty. Now that list includes 21 statutory factors,
and, as Hoffman says, state’s attorneys can easily switch their
decision from objective to subjective.

Death-penalty reformers also say that racism and
geographical bias have been found in past Illinois capital prosecutions.
According to the commission’s study of capital cases from 1988
through 1997, capital punishment was more often imposed when the victims
were white and when cases were prosecuted in rural counties.

Bohman says Illinoisans also need to consider the
financial impact of capital punishment. The state’s fiscal year 2008 budget provides
$16.33 million to the Capital Litigation Trust Fund, which was created to
increase resources available to death-penalty defendants. At one time,
prosecutors had an overwhelming advantage.

Now that the state has put more
resources into the defense side, Bohman says, it’s leveled the
playing field but also increased the entire cost of the system.

“Millions are spent on the system, even though
the use of capital punishment has dropped compared to other cases
successfully resolved,” she says. “It’s bigger investment
and less return.”

Tom Sullivan, co-chair of the Capital Punishment
Reform Study Committee, recently published a status report on the Illinois
capital-punishment system in the Illinois Bar
Journal. He writes that although
it’s too soon to determine whether problems in the state’s
system have been alleviated, the commission has identified issues that
still need to be addressed.

He notes that most capital-certified murder
indictments are ultimately resolved without death sentences, the cost of
capital cases exceeds that of noncapital cases, capital cases average more
than 10 years before they’re finally resolved, the Illinois Supreme
Court continues to ignore the call for racial and geographic discrimination
study, and a high risk of error continues to plague Illinois death cases.

In the article, Sullivan acknowledges that the
General Assembly has taken steps by enacting such reforms as the mandatory
electronic recording of suspect questioning, beginning with the initial
Miranda warning; a mandatory pretrial hearing to determine the
admissibility of testimony if a jailhouse informant is called; and the
prohibition of a death-penalty sentence if the only evidence comes from a
jailhouse informant, a single eyewitness, or an accomplice.

However, he writes, legislators have still not
approved most of the commission’s recommendations. To eliminate
problems with flawed eyewitness identification, the person conducting a
suspect lineup or photo spread should be unaware of the suspect’s
true identity and should only produce photos or subjects for the witness
one at a time. To reduce the arbitrary nature of the system,
Sullivan continues, the General Assembly or the governor needs to appoint a
five-member panel of lawyers and judges to review all cases in which
state’s attorneys seek a death sentence.

Additionally, Sullivan
recommends, the number of statutory factors should be reduced from 21 to
five: murder of a peace officer, murder at a correctional institution, the
murder of two or more persons, murder involving the infliction of torture,
and murder of a person involved in the investigation. Sullivan lists other commission proposals, including
a key recommendation that juries should not have the final say in capital
trials. Instead, he writes, the judge should be permitted to override a
jury decision and impose a noncapital sentence if he or she deems it
necessary.Even as Sullivan and
other death-penalty reformers continue to weigh the issue, for now, the
future of Illinois’ capital-punishment system remains uncertain. Some say the governor seems cagey about the issue. He
charged the committee with determining and reporting on the effectiveness
of reforms but first delayed the appointment of members and then stripped
the committee of its $250,000 budget during last summer’s budget
fiasco.

It hasn’t hurt too much, Sullivan says, because
the committee members — lawyers who serve without pay — have
continued to do their work without funding. They’re in the process of
conducting interviews and gathering data and will file their fourth annual
report in the coming weeks. However, Sullivan says, they’ll
eventually require funds for travel and to hire outside experts.

State Sen. Kirk Dillard, R-Hinsdale, who also serves
on the committee, recently introduced two new bills to the General
Assembly. Because of the appointment delay, Dillard introduced the first
bill to extend the life of the committee by one year, to 2009. It was
passed by the Senate and now awaits House approval. Dillard’s second bill, seeking the
appropriation of $250,000 for fiscal year 2008 and $250,000 for fiscal year
2009 from the general-revenue fund to the Illinois Criminal Justice
Information Authority, is still before the Senate. Contact Amanda Robert at arobert@illinoistimes.com.